Kansas Senate passes bill aiming to curb ‘abusive’ ADA suits after initial backlash

Kansas senators approved a bill Wednesday allowing Kansas businesses to countersue some plaintiffs that allege they violated the Americans with Disabilities Act arguing the suit is abusive.

The state Senate passed the bill 35 to 5 after negotiations with disability rights advocates who worried the original version of the legislation would essentially eliminate ADA rights in Kansas. The bill now heads to the House.

The bill aimed to stem a growing tide of lawsuits filed against small businesses nationwide by out-of-state plaintiffs that appear to be aiming to gain quick settlements and high payouts.

According to the Washington Post, lawsuits under the Americans with Disabilities Act quadrupled between 2013 and 2021 with a high proportion being filed in New York and California courts. Cases, the post reported, often target websites that lack accessibility features or gas stations that fail to include closed captioning with videos.

The Kansas Chamber of Commerce said their members had been affected by these suits since 2017.

“The high cost of the litigation is the primary factor that causes businesses to settle, making these cases very profitable for out-of-state attorneys,” chamber lobbyist Eric Stafford said in a statement. “The exponential increase of this type of abusive litigation demonstrates that existing avenues are insufficient. The attorney involved in the case against one Kansas small business has filed more than 800 cases across the country since 2020 alone. This cannot be described as anything but predatory and extortion.”

Earlier versions of the bill would have allowed any business sued under the ADA for access issues on their website to countersue by claiming the lawsuit was abusive. It allowed businesses sued for ADA violations to earn triple the amount of attorneys’ fees as punitive damage if they win the suit.

A coalition of 32 Kansas-based disability rights advocates and organizations sent a letter to lawmakers urging a no vote with scathing language arguing the bill “ships ADA rights off to the deep freeze of Siberia.”

In response to the concerns, senators unanimously approved amendments to the bill narrowing the bill’s scope to website lawsuits only, removing language that said there would be a presumption of abuse if a lawsuit remained in place after “reasonable” efforts were taken to comply with the ADA, and sunsetting the bill once the U.S. Department of Justice issues standards for accessibility of websites.

Under the current version of the legislation, businesses can still countersue if they believe a lawsuit is abusive. The suit would not be presumed to be abusive if within 90 days the alleged violation has not yet been resolved.

“I’m hopeful that the changes that were made will better ensure that this will not have a chilling effect,” said Rocky Nichols, executive director of the Disability Rights Center of Kansas. He added that it was clear the bill would pass whether the changes were made or not so the disability rights community chose to work to improve the bill despite their opposition.

The Americans with Disabilities Act was a marquee bipartisan accomplishment for the former U.S. Sen. Bob Dole, a figure revered by Kansas Republicans who passed away in 2021. The act has long been viewed as a major step forward for guaranteed accommodations to individuals with disabilities across the country.

Sen. Kellie Warren, a Leawood Republican, quoted Dole while speaking in favor of the bill. She said Dole had called the ADA a balance between the needs of disabled Americans and businesses.

“Unfortunately that careful balance has been put out of balance by litigation like the one I told you about,” Warren said, referencing an abusive lawsuit filed against a small business in McPherson, Kansas.

Joseph Mastrosimone, a Washburn University law professor who specializes in employment and labor law, said the narrowing of the bill was a good thing but that the state still runs the risk of violating federal law and allowing access violations affecting deaf and blind Kansans to go unchecked.

The bill, he said, could violate the federal preemption clause that bars states from taking action that impedes a federal law.

“It is putting up barriers and roadblocks and penalties when people bring lawsuits under federal law,” he said.

Though the amendments to the bill narrow the impact, Mastrosimone said ADA lawsuits based on websites will only become more common as more information is stored online and more workplaces allow remote work.

Rep. Fred Patton, a Topeka Republican who chairs the House Judiciary Committee, said existing Kansas law isn’t sufficient to handle the issue because Kansas law doesn’t apply to out-of-state litigation. The potential bill would create a cause of action within Kansas.

But he said legitimate claims needed to be preserved.

“Clearly there is a problem,” Patton said. “That’s not good for small businesses, it’s not good for those who rely upon the ADA for protection. So we need to figure out how to come up with something that addresses that.”